US Court Dings Digiprotect On Mass Lawsuit Filings; Worries About Pressure On Those Sued To Settle

from the good-rulings dept

Paul Alan Levy points us to a good ruling in the Southern District of NY district court concerning yet another mass infringement lawsuit filing (pdf and also embedded below), this time by Digiprotect. The ruling touches on a few different issues, and actually may be quite useful, in light of some other recent rulings. Also, if you recognize the name Digiprotect, that may be because it was heavily involved in many of these kinds of mass infringement lawsuits in Europe, helping, in some ways, to pioneer the strategy of suing a ton of people in the hopes that many will settle. I hadn't realized it had set up shop in the US as well, but apparently it has. In this case, it appears to have taken on a Righthaven-like strategy, rather than a US Copyright Group strategy. That is, it actually "purchased" the copyrights, in some form or another, in order to sue, rather than just acting as the lawyers for a copyright holder. In this case, the actual content was produced by a California porn studio, Patrick Collins, Inc., better known as Elegant Angel Productions.

Digiprotect sued 266 individuals based on IP addresses, and asked the court for expedited discovery to find out who those people were. As has happened in similar lawsuits, Comcast and Time Warner protested, and after some wavering, the court asked Comcast and Time Warner to identify how many of the IP addresses listed from their subscribers, were actually in New York. In the end, Comcast said none of its subscribers on the list were in New York, and Time Warner said only 10 were. Digiprotect itself then admitted that on the entire list there were only 20 to 25 in NY. The court then told Digiprotect that it would only allow discovery for the IP addresses for NY subscribers, and suggested that Digiprotect file an amended complaint that only listed those IP addresses.

Digiprotect, apparently seeking to piss off the judge, instead filed an amended complaint still listing all 266 defendants. Bad idea.

The court makes it clear that those outside of its jurisdiction should not be included in this filing, and that it completely understands the business model aspect of what Digiprotect is trying to do:

During that conference the court noted its concern about ensnaring unsophisticated individuals from around the country in a lawsuit based in New York. The court was concerned then, and remains concerned, that defendants over whom the court has no personal jurisdiction will simply settle with plaintiff rather undertake the time and expense required to assert their rights.

That's an important point that we would hope other judges would note as well. Compare this to Judge Beryl Howell's ridiculous claim that lumping all these different defendants into a single lawsuit filed far away benefits defendants.

Separately, the court touches on another recent ruling we discussed, involving jurisdiction for copyright infringement under New York's "long arm" statute. As you may recall in that lawsuit (Penguin Group vs. American Buddha), the court basically said, "if it's on the internet, and the company is based in NY, it's okay to file in NY." We found that troubling, and apparently Digiprotect pointed to that case, since its US operations are based in NY... but the judge isn't buying it, and highlights some important limitations to the Penguin/American Buddha ruling. First, it notes that it's not even clear if that ruling applies to Digiprotect, because the real company "harmed" by the infringement is not Digiprotect, but Patrick Collins, which is based in California, not NY. It notes that Digiprotect really only received a "very narrow license," (which makes me wonder if it could be facing the same problems Righthaven is now facing for "buying lawsuits" instead of "buying copyrights").

More importantly, however, the court notes that even with the Penguin/American Buddha ruling, the company would still need to show that the defendants had "minimum contacts" in the state and that the lawsuit "comports with traditional notions of fair play and substantial justice, as required by the Federal Due Process clause." The court doesn't find that to be the case with Digiprotect:

Digiprotect has made no showing that any of the Doe defendants expected or reasonably should have expected their downloading of this film to have consequences in New York, particularly when the producer of the film is located in California. Furthermore, Digiprotect surely has no basis from which to allege that the unknown defendants derived substantial revenue from interstate or international commerce.

From there, the court limited the subpoenas only to the small number likely to be located in New York. Nice to see another judge recognizing how these lawsuits are more about a business model than about actual justice.

Perhaps Patrick Collins and all who work there have a medical issue?

Given that they're in the porn industry, the possibility that they may have late stage AIDS and its associated dementia should not be overlooked. After all, HIV is still rampant in porn, which is why a lot of them don't film in the US anymore.

Re: Perhaps Patrick Collins and all who work there have a medical issue?

It is more so there are many groups currently offering this type of service.
Several are lawyers who took a look at how "well" ACS:Law and the German granddaddy of these "settlements" were doing.
They sell the upside, your going to make all this money and you don't have to do anything.
We pay all the costs for you and for a "modest" (cough sometimes 80%) percentage of the settlement we will pursue these evil bastards to the end of the earth.

What they fail to mention is the downsides -

Bad publicity when someone innocent of the alleged activity gets press coverage.
- See the Grandmother in MN that USCG is having a local lawyer sue, I think she has a pretty good case - She doesn't own a computer. She told them that when she got the first shakedown letter, they replied by kicking an extra thousand on the demand.

- See Stone hauled into court to be read the riot act for making subpoenas up.

- See Steele reportedly drunk at an adult industry show saying how well it is going to potential clients, while Judges in 3 or 4 districts are beating the snot out of his filings.

- See any statement by Randazza involving LMH/CF litigation.

I do know that the shit is flowing uphill in these cases.
There is an concerted effort to ignore anything produced by Lucas Entertainment (Stone) and Corbin Fisher/Liberty Media Holdings (Randazza). The legal advice for CF went so far as to change the TOS for their website and create public outcry about insane terms. These brands, and most likely the others, are suffering damage and getting a negative impression from the public. Given the scope of porn producers on teh internets, some doing it for free on the tube sites, they do not have the marketshare to spare.

I guess they should have waited to see the newest rulings against ACS:Law and the crapstorm Andrew is now in, before pursuing this strategy.

Until the content producers actually decide to look at hard numbers and rulings in other cases, they just see the dollar signs they were promised. Often they start looking to late.

"From there, the court limited the subpoenas only to the small number likely to be located in New York. Nice to see another judge recognizing how these lawsuits are more about a business model than about actual justice."

While this is certainly an improvement over what we had before, if the courts truly recognize that these lawsuits are a scam then, instead of granting any subpoenas at all, they would hit these scam artists with frivolous lawsuit fines.

lawsuit

Porn

Could it be that maybe some of these judges are tired of hearing about downloaded porn? LOL. Judges are fairly strait laced conservative types and maybe they just don't feel sorry for people who produce porn flicks. If for example people were being sued for downloading actual movies then maybe the judges would be more interested in the cases. Most of these letters sent out to people are about porn which I don't think that particular business rakes in massive amounts of money even though a lot of people watch it. Just trying to earn dough for the porn industry I guess.

hip hop seazon

Patrick Collins producer sir I have come to some studio time in the attempt of 10,000 push ups. And a overcharge on two NYPD officers with a $400,000,000 million dollar plot and as Oscar representative would like a part in a motion picture being Homeland security classified with the FBI. And modeled for talent agent VP Jill Reiling and made sexy celebrity Paris Hilton my lover. In Homeland security classified special officer Cpl. Crime prevention Emcee Blackstone Collins to graduate from Stratford carrier institute.